17-4083 Chen v. Barr BIA Nelson, IJ A205 075 532 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 8th day of October, two thousand nineteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 RAYMOND J. LOHIER, JR., 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 XUE KONG CHEN, 15 Petitioner, 16 17 v. 17-4083 18 NAC 19 WILLIAM P. BARR, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Nataliya I. Gavlin, Gavlin & 25 Associates, P.C., New York, NY. 26 27 FOR RESPONDENT: Joseph H. Hunt, Assistant 28 Attorney General; Terri J. 29 Scadron, Assistant Director, Lisa 30 M. Damiano, Trial Attorney, Office 1 of Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Xue Kong Chen, a native and citizen of the

10 People’s Republic of China, seeks review of a December 4,

11 2017, decision of the BIA affirming a March 8, 2017, decision

12 of an Immigration Judge (“IJ”) denying asylum, withholding of

13 removal, and relief under the Convention Against Torture

14 (“CAT”). In re Xue Kong Chen, No. A205 075 532 (B.I.A. Dec.

15 4, 2017), aff’g No. A205 075 532 (Immig. Ct. N.Y. City Mar.

16 8, 2017). We assume the parties’ familiarity with the

17 underlying facts and procedural history in this case.

18 Under the circumstances of this case, we have reviewed

19 the IJ’s decision as supplemented and modified by the BIA.

20 See Xue Hong Yang v. U.S. Dep’t of Justice,

, 522

21 (2d Cir. 2005); Yan Chen v. Gonzales,

(2d

22 Cir. 2005). The applicable standards of review are well

23 established. See

(b)(4)(B); Hong Fei Gao v.

24 Sessions,

(2d Cir. 2018) (reviewing adverse

2 1 credibility determination for substantial evidence).

2 “Considering the totality of the circumstances, and all

3 relevant factors, a trier of fact may base a credibility

4 determination on the demeanor, candor, or responsiveness of

5 the applicant . . . , the inherent plausibility of the

6 applicant’s . . . account, the consistency between the

7 applicant’s . . . written and oral statements . . . , the

8 internal consistency of each such statement, the consistency

9 of such statements with other evidence of record . . . without

10 regard to whether an inconsistency, inaccuracy, or falsehood

11 goes to the heart of the applicant’s claim, or any other

12 relevant factor.”

(b)(1)(B)(iii). “We defer

13 . . . to an IJ’s credibility determination unless, from the

14 totality of the circumstances, it is plain that no reasonable

15 fact-finder could make such an adverse credibility ruling.”

16 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008);

17 accord Hong Fei Gao,

. Substantial evidence

18 supports the agency’s determination that Chen was not

19 credible as to his claim that police officers detained and

20 beat him on account of his practice of Christianity or that

21 he feared future persecution based on his practice of

22 Christianity in the United States.

3 1 First, the IJ found that Chen’s demeanor detracted from

2 his credibility because he appeared nervous and paused in

3 answering questions. An IJ may base a credibility

4 determination on the “demeanor, candor, or responsiveness” of

5 the applicant.

(b)(1)(B)(iii). We defer to

6 the IJ’s findings based on her observation of Chen’s demeanor,

7 see Jin Chen v. U.S. Dep’t of Justice,

(2d

8 Cir. 2005), particularly where, as discussed below, there are

9 also inconsistencies in Chen’s statements, see Li Hua Lin v.

10 U.S. Dep’t of Justice,

(2d Cir. 2006) (“We

11 can be still more confident in our review of observations

12 about an applicant’s demeanor where, as here, they are

13 supported by specific examples of inconsistent testimony.”).

14 Second, the agency reasonably relied on Chen’s

15 inconsistent statements. See

(b)(1)(B)(iii).

16 When Chen was asked whether he received any instructions on

17 release from detention, he twice equivocated before stating

18 that he had to sign a letter that he would not attend the

19 unregistered church. Chen’s explanation that he stuttered

20 and misspoke does not compel a different interpretation. See

21 Siewe v. Gonzales,

(2d Cir. 2007) (“So long

22 as there is a basis in the evidence for a challenged

4 1 inference, we do not question whether a different inference

2 was available or more likely.”). In addition, Chen initially

3 misstated his witness’s name and then hesitated when asked to

4 confirm the name. See Xiu Xia Lin,

(“[A]n

5 IJ may rely on any inconsistency . . . in making an adverse

6 credibility determination as long as the ‘totality of the

7 circumstances’ establishes that an asylum applicant is not

8 credible.” (emphasis in original)).

9 Third, the IJ reasonably found, in light of Chen’s

10 testimony, that his medical evidence was implausible. Chen

11 testified that he was beaten by the police the day after he

12 was detained, and that he was only beaten once. He stated

13 that the beating left “[s]ome areas . . . swollen,” and

14 “[s]ome areas became bruises.” Doc. No. 12 at 97. However,

15 Chen did not receive medical care until four months later, so

16 the IJ reasonably questioned why he would still have bruises

17 given the lack of any testimony about the severity of his

18 injuries. See Siewe,

(requiring

19 plausibility findings to be “tethered to the evidentiary

20 record”).

21 Lastly, the IJ reasonably concluded that Chen’s

22 corroborating documents — letters from family and a friend in

5 1 China — did not rehabilitate his testimony. See Biao Yang

2 v. Gonzales,

(2d Cir. 2007) (“An applicant’s

3 failure to corroborate his or her testimony may bear on

4 credibility, because the absence of corroboration in general

5 makes an applicant unable to rehabilitate testimony that has

6 already been called into question.”). Chen did not challenge

7 this finding before the BIA and does not do so in his brief

8 to this Court. See Yueqing Zhang v. Gonzales,

,

9 545 n.7 (2d Cir. 2005) (providing that issues not raised in

10 an opening brief are waived); see also Lin Zhong v. U.S. Dep’t

11 of Justice,

, 119–22 (2d Cir. 2007) (requiring

12 petitioner to exhaust all issues before the BIA).

13 Given the IJ’s observations regarding Chen’s demeanor,

14 the inconsistencies within Chen’s statements, the

15 questionable medical records, and the lack of reliable

16 corroboration, we conclude that the IJ’s adverse credibility

17 determination is supported by substantial evidence. See 8

(b)(1)(B)(iii); Xiu Xia Lin,

.

19 The adverse credibility determination is dispositive of

20 asylum, withholding of removal, and CAT relief because all of

21 Chen’s claims relied on the same factual predicate. See Paul

22 v. Gonzales,

, 156–57 (2d Cir. 2006).

6 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court

7